Solum draws out some normative implications from Semantic Orginalism in the final third of his essay. Before turning to that material, I want to set out some conclusions about the first two theses. The first, and most important, is that Solum is the first person to offer a plausible account of orginalism of any kind. Solum’s is the first originalist theory that is serious. This is an impressive accomplishment.
Second, I do not think he has yet carried the day. There remain areas in which his theory is open to question or seems to be incomplete. There seem to be key pieces of the theory which are either assumed without argument or for which I find the argument unpersuasive. One such key piece of the overall theory is the notion of “Constitutional utterance.” Solum has very little to say in the way of explaining what such an utterance is, and why it should be understood as an utterance in the same sense as a bit of ordinary speech. As the essay concedes, or perhaps better, assumes, a constitutional utterance is spread over years and a relatively large number and heterogeneous set of speakers. It is not enough to stipulate the idea will be filled in at some later date. It is at the center of the theory. A significant part of the rhetorical persuasiveness of the theory lies in the analogy of determining meaning in ordinary speech with determining the meaning of some constitutional utterance. Another area I think in need of development is the account of the contribution of context to meaning, and what it is that counts as context. A final example – the argument all along is for semantic content, understood as conventional public meaning of the language, constitutes the meaning of the Constitution. That is summed up, in part, by the “clause meaning” thesis. But there is no argument at all for meaning to lie in clauses, rather than sentences or phrases or paragraphs or documents. Semantic content need not come in clause packages; there are other ways of dividing up the ‘units.’ Constitutional practice may be tied to clauses, but that cannot be the basis for argument at this point in the essay. Semantic orginialism has to come before Constitutional practice in the theory. Certainly such a fundamental point as the unit of meaning can’t be a matter of special legal practice if semantic orginialism is suppose to be a theory of Constitutional meaning. If that is the order, the originialism is unlikely to be worth the work of elaboration.
But not everything can be done in one essay – maybe a book would have room for all the pieces, but maybe not even then. So the first point again: a genuinely impressive accomplishment: the first originalist theory that is plausible.
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